May 28, 2009
Posted: May 28th, 2009 03:49 PM ET

From

Even before President Obama chose Sonia Sotomayor for the Supreme Court, he let it be known that he was looking for a justice with, among other things, something called 'empathy.'

By that, he said, he meant someone who understands "ordinary Americans so that everybody is heard." And that quality, we can infer, comes largely from life experience and background. Ipso facto, Sotomayor's up-by-the-bootstraps life story could well make her a more empathetic justice.

It's a notion that clearly horrifies conservatives. "It opens a grand debate of the president's own making," Manuel Miranda, chairman of the Third Branch Conference, told me. For conservative purists, empathy is all about feelings, which have no place in the law. It's also about experiences-even ethnicity-which should also have no place in the law.

As a defiant Justice Antonin Scalia said in 2007, "…just as there is no 'Catholic' way to cook a hamburger, I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic." And I'm sure he's telling the truth.

But there's more to it than that. If empathy means you "understand what other people are thinking," says one senior White House advisor, "…you would think you would want a judge with empathy." That's also true.

So here are the questions: Can a justice have empathy and still rule dispassionately on the law? Or does empathy so control – and even corrode - our nature that it affects every intellectual argument? Or, conversely, would judicial decisions actually benefit from a dose of empathy?

The rap against Sotomayor on the empathy front is that she's over-the-top. The alleged proof of this is a statement she made at a symposium in 2001 arguing that a "wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who has lived that life." It was silly, to be sure, and more than a tad self-serving.

And when she was asked about it by the White House team, according to a senior advisor, she explained her answer by saying that "her life experiences" impact "how she sees facts that come before her as a judge." Not to mention the fact that she also pointed out that the landmark civil rights decision Brown vs. Board of Education was made by an all-white, all-male court.

No one can pretend that using the word "better" to describe the Latina woman's legal conclusions was a good idea; it wasn't. But how can anyone argue with the notion that who we are affects - in one way or another - how we view things? And on a collegial, multi-member court, isn't that diversity of experience a good thing?

Just ask conservative Justice Samuel Alito. When testifying at his own confirmation hearings, he was all about empathy. "…[W]hen a case comes before me involving, let's say, someone who is an immigrant…I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position." Conservatives found no objection when Alito described his own brand of empathy.

And ask the more liberal Justice Ruth Bader Ginsburg, who recently told USA Today of her concerns about the male-ness of the court during a recent case involving a 13-year-old girl who had been strip-searched in an Arizona school when officials were looking for drugs. "They have never been a 13-year-old girl," she said. "It's a very sensitive age for a girl. I don't think that my colleagues, some of them, quite understood."

And then there's this: Can anyone point to a pattern in Sotomayor's opinions which are based more on 'empathy' than the law? Of course not.

And that's precisely the point: Unless Sotomayor's opponents can succeed in using her judicial record to portray her as a passionate, wild-eyed judge who depends more on emotion more than legal precedent, they're in for a tough time.

If they think empathy is a dirty word, they'll have to convince the American public.

Filed under: President Obama • Sonia Sotomayor • Supreme Court


Doug   May 28th, 2009 5:21 pm ET

You reap what you sew...... Unfortunately a few bad apples have not only created stereotypes for other races, but have created horrible stereotypes for themselves. Go ahead complain and act like you didn't know this was coming. The demonizing of viewpoints of those who have seen stereotypical behavior affect families in a very negative way is like shooting an abused animal for its temper. It's a way around accountability. I understand how you can claim you have nothing to do with the history. If you do nothing, you are part of the problem.

Buddy Gilmour   May 28th, 2009 5:21 pm ET

There is no doubt in my mind that Scalia's Catholic upbringing does influence his beliefs about what is right and what is wrong, what is fair and what is unfair, and what is just and what is unjust. Upbringing strongly influences those kinds of beliefs in all of us. Thats why having diversity on the court is so important.

Just My Opinion in Texas   May 28th, 2009 5:20 pm ET

From the audio I heard .. It appears that Sotomayor would allow her empathy to cloud her judgment and severely impact her judicial responsibilities.

Granted .. our experiences do tend to color our responses and judgments ... but I believe most rational people are able to prevent them from adversely clouding their judgments.

Yes, it is a VERY fine line to walk ... but if Judge Sotomayor CANNOT keep her empathy from clouding her decisions ... then she has no business on SCOTUS.

It is just THAT simple.

Just My Opinion in Texas   May 28th, 2009 5:19 pm ET

From the audio I heard .. It appears that Sotomayor would allow her empathy to cloud her judgment and severely impact her judicial responsibilities.

Granted .. our experiences do tend to color our responses and judgments ... but I believe most rational people are able to prevent them from adversely coloring their judgments.

Yes, it is a VERY fine line to walk ... but if Judge Sotomayor CANNOT keep her empathy from clouding her decisions ... then she has no business on SCOTUS.

It is just THAT simple.

Had It   May 28th, 2009 5:17 pm ET

I can think of 3 or 4 other words that are not dirty either, but when put together add up to most of the court

White Male Catholic

J.P.   May 28th, 2009 5:09 pm ET

"up-by-the-bootstraps life story"

I'm sorry, when did being nominated to the highest court in this nation become a match of high hurdles?

She had a tough life? Yeah, me too. Big deal. Does that mean I'm qualified to sit on the SCOTUS? Not hardly.

But my rich experiences as a white man enable me to reach better conclusions than others... yep, sounds equally as racist when I say it, too.

I'm sorry, but when we've come to the place in this nation when wielding identity politics like a cudgel against anyone with whom you disagree, then the very vetting process mandated by the constitution for SCOTUS vacancies is severely damaged.

Right wing talking point   May 28th, 2009 5:06 pm ET

Compasionate Conservatives have a problem with "empathy" go figure...

It's time the republicans get treated for their crainial sphincteritis.

RobK   May 28th, 2009 5:06 pm ET

Empathy is an issue if a judge doesn't uphold the law just because they feel sorry for someone. It is odd that so many people don't think that white males can have empathy and that you have to be the same color and gender to have empathy for someone. Even Ginsburg said it, but you don't hear her called a bigot.

LB   May 28th, 2009 5:04 pm ET

Empathy is not a dirty word but apperantly racist is when directed at a non-"white male". Do I think she is rascist, well not fully but Ive seen people ripped to shreds by politicians or the media for much less.

The issue is not what she was inferring but what she said. Reading the full transcript provides context but doesnt change that she said a latina womens experiences make her a better judge than a white male.

If she had said the courts would be better to have a wide range of views including those of the financially disadvantaged and women and that was the danger of having our courts unfairly dominated by white men then she would be ok. Or she could have said a latina woman with her richness of experience would come to a better decision than somone without that experience. But she doesn't, she singles out one ethnic group.

Unfortunately if you think her remark is not racist just reverse the white male and latina woman in the sentence.

Peter (CA)   May 28th, 2009 5:04 pm ET

Great article in the LA Times about the "empathy" of Earl Warren when he was chief justice and his court.
A number of decisions of the civil rights era included "empathetic" principles in order to right wrongs. That court (and for the right wingers, Warren was a Republican) made a number of decisions that changed this country.
One would not want empathy to be the overriding trait of a justice but dealing with humanity demands some shred of it.

Lesley Anne   May 28th, 2009 4:59 pm ET

Excellent article putting out arguments to the Republican "concerns." It underscores not only how hypocritical they are but also reinforces their obstructionist tactics. They are actually attacking her for the very same statements made by conservative Supremes. Does that stop them? Of course not! Thank you for bringing this to light.

Henry Miller   May 28th, 2009 4:57 pm ET

"Empathy" is very much a dirty word if it's used as an excuse for judicial prejudice–and that's exactly what Sonia Sotomayor endorses. Her view that the ethnicity and sex of a judge "may and will make a difference in our judging"–those are exactly her words–is highly prejudicial to those of the "wrong" ethnicity and sex.

zazu   May 28th, 2009 4:51 pm ET

Every Conservative, especially those social conservatives who attend church should know and concede readily that the one Judge they know to be absolutely just and not show favoritism is also the one who is the most empatethic. He calls Himself "a father to the orphan and the defender of widows," of those who are desititue and vulnerable. How is it then that "emphathy" and "justice" became so mutually exclusive? Be honest people. After all people of faith detest double standards and Hypocrisy! Don't we?

Doug   May 28th, 2009 4:51 pm ET

Many of you are forgetting the many decades of suppressed viewpoints by those who have been mistreated, by American Capitalism. I'm not advocating an anti Capitalistic interpretation of my statement. I am merely making it clear that a lack of empathy in our judicial system is an easy way to eliminate any accountability for dehumanizing an entire region of people by valuing the profits over the well being of Latin Americans. I view this as fairly hypocritical. I would agree that her statement may seem bitter and racist to some. I do believe those crying racism are possibly racist themselves. You may be projecting your own bitterness in the debate. I personally feel that her viewpoint is very different than the stereotypical white male who hasn't lived that life. I for one, am a Caucasian male who has seen how these viewpoints are formed living in poverty. Thus I can respect her viewpoint. Let's not forget which ideologies created modern day stereotypes. You can't disregard something unless you have not experienced it. Think about the circumstances surrounding her statement. Have you been in her shoes? Have you been mistreated as many Latin Americans have? Have you been forced to go around the law to feed your family. If you have than you too have been infected by the propaganda. It's a two way street. You reap what you sew. Open your eyes and you will see. lol

Bit   May 28th, 2009 4:48 pm ET

It's only a dirty word to the "Double-Standard" Republicans.

Great Job, Gloria!

Dutch/Bad Newz, VA   May 28th, 2009 4:48 pm ET

@ P.Y.

I agree with you as well

DankRuse   May 28th, 2009 4:47 pm ET

The role of a supreme court justice is to follow the letter of the Constitution. That is all. Nowhere does empathy play a part. Empathy is not a right given to the Federal Government by the Constitution, therefore, empathy belongs to the states' rights. 'Nuff Said!

Donna from Colorado Springs   May 28th, 2009 4:44 pm ET

If Republicans don't understand the meaning of a word, they automatically deem it wrong, dirty or not worth their effort! What a bunch of losers! Of course they don't want anyone on the high court that understands the problems of ordinary people because they DON'T CARE ABOUT THE ORDINARY PERSON! Anyone showing empathy is considered weak, and the Republicans only respond to someone who shares their beliefs. Human needs and frailities aren't in their dictionary of important words. They are a very arrogant and self-absorbed group of people, and I'm proud to be Democrat who cares about other people!

Robin in Tampa, FL   May 28th, 2009 4:42 pm ET

Screw you CNN and the rest of the mainstream media .... for continually propagating the crap that comes out of mouths of those howler monkeys on Fox News & Talk Radio. You've taken a fine word to describe a great personal trait and made it into another quasi-taboo political term of denigration .... just like you did with the term "Liberal" ...

phoenix86   May 28th, 2009 4:42 pm ET

As a white male, I think I can empathize better than other races (I'm certainly asked to do it more often). So I think we can give a Latino woman the chance to show that she can empathise as well as the white people.

Now, is that racist? If you think so, just change the words and you get what Sodamayor said.

Lori   May 28th, 2009 4:41 pm ET

'Empathy' is a dirty word to any conservative as long as a Democrat says it. Just like Sotomayor's 'ethnic' comment is not alright unless a Republican says it (like Justice Alito). GIVE ME A BREAK, REPUGS.

How bout that Dominican Republic vacation, Rush?   May 28th, 2009 4:37 pm ET

Who in their right mind would think 'empathy' is a dirty word? Is the GOP so lacking for un-used attacks on an Obama decision that they're trying to persuade their low-info supporters by using a 'big', mysterious word like 'empathy' to hold some sort of power over them?

Do conservatives really think that the crack GOP 'leadership' is the best they can do? Talk about selling themselves short..

P. Y.   May 28th, 2009 4:36 pm ET

@Sniffit–The real one

I agree with you 100%

BTW- When someone has to take someone's else's name on a blog it shows what kind of an idiot they are. Most people on here are smart enough to figure out who is the fake and who is real. We also have a lot of fools on here that blog many times under many different names. They would like people to believe that many others think the same way they do. NOT!

John   May 28th, 2009 4:35 pm ET

I want LEGISLATORS with empathy and compassion and JUDGES who are dispassionate. The interpretation of law should be about matters of fact. Not pathos.

And Obama is no worse by using empathy as a criteria than any other President in the past who has done the same thing.

Sorry if that doesn't fit in anyone's "Democan or Republicrat" box.

Ryan   May 28th, 2009 4:35 pm ET

Claudia in Houson May 28th, 2009 4:30 pm ET
FYI: Geoge H.W. Bush used the word empathy to describe Justice Clarence Thomas for his nomination. REPUBLICANS READ YOUR OWN HISTORY.
--------------------------------
You’re absolutely correct .

George H.W. Bush, July 1991, on the occasion of his nomination of Clarence Thomas to the Supreme Court:

"I have followed this man's career for some time, he is a delightful and warm, intelligent person who has great empathy and a wonderful sense of humor."

Melissa   May 28th, 2009 4:34 pm ET

Glad to hear someone say it. The angry Republicans need someone to slap them upside the back of the head for the behavior they keep displaying. They just seem to constantly want to fight. Its incredibly childish.

geecee   May 28th, 2009 4:34 pm ET

Maybe we should appoint robots to the Supreme Court, strictly logical, rational rulings, no human feelings or emotion – would that make you Republicans happy? Then again, maybe not, since you aren't logical or rational. You think Scalia doesn't let his personal feelings influence his decisions?

I am sure it is annoying the crap out of you because Obama hasn't "failed" yet. Blimpbag must be ready to burst a blood vessel!

chuck   May 28th, 2009 4:33 pm ET

This president would not know empathy if it was written on a shoe and hit him in the face. He too had an unusual upbringing, but just like Clarence Thomas, he will not use his clout to reach out to the less fortunate or erase Don't Ask, Don't Tell. He is a wolf in sheeps clothing. He is a politicians politician. He will not do anything empathetic until he has been elected to his second term – IF he does it then. It's all about HIS career and HIS goals. Once those have been played out then empathy may rear it's head.

Sandra,Atlanta   May 28th, 2009 4:31 pm ET

@Snippet: Did Obama have empathy when he forced to close GOP-donor owned PROFITABLE Chrysler dealers while leaving DEM-donor owned UNPROFITABLE dealers open?

I think not.

Game. Set. Match

Snippet, even FOX News who we know is blantantly bias said they investigated and there are no facts to back up this claim. Maybe you should investigate your facts a little better.

Claudia in Houson   May 28th, 2009 4:30 pm ET

FYI: Geoge H.W. Bush used the word empathy to describe Justice Clarence Thomas for his nomination. REPUBLICANS READ YOUR OWN HISTORY.

John W. Olver   May 28th, 2009 4:30 pm ET

No difference in Scalia's opinions if he were raised other than Catholic? Baloney. If he'd been raised an agnostic, a Buddhist, or a Hindu his opinions on life and the law and humanity would be different. If he truly doesn't realize that people are formed by their upbringing and their environment he is a fool.

We are all products of our life history and whether we are interpreting a religious text, a poem or the law the perspective from which see things is dependent on that history.

Mari( maybe one of my comments will be posted)   May 28th, 2009 4:29 pm ET

@ Darla (Edmonton Canada) ........ True! Somehow we have been slowly, and painfully losing empathy in our Nation. It started with the reign of Bush. The GOP do not have a record of compassion.

Example, Bush vetoed the SCHIP Bill last year, that would have provided healthcare for 7 million children. How can a man who claims to be "pro-life" lack compassion?

AJB   May 28th, 2009 4:29 pm ET

It's a shame that even cnn insists on parsing Ms. Sotomayors statement she made at a symposium in 2001 – if they were to post the complete statement, it would instantaneously debunk the ridiculous "racist" comments. Do your research folks, read her statement – the full statement in context.

Empathy is a good thing – it shapes all of us and the decisions and choices we make. Leave it to the gop to consider it a bad thing.

Other justices have spoken on empathy – why is it so wrong now?

Ryan   May 28th, 2009 4:29 pm ET

Hey dominican,

I don't know how this came to be a bad thing and a pejorative term, but the right wing has made it one. At some point, the far-right believed that empathy has become a dirty word, supposed code for "judicial activism" and "social engineering".

Since you asked:

Charles Krauthammer called empathy “the opposite of justice” and said that it “overturns the idea of Martin Luther King” that people should be judged by their character.

On the Glenn Beck Paranoia Hour recently he said that “empathy leads you to very bad decisions” and cited a decision by Adolf Hitler as proof of the evils of empathy.

Steph   May 28th, 2009 4:27 pm ET

Wow, it is amazing how angry people can get even when the topic is EMPATHY. I would hope we would all want judges, school teachers, doctors, car mechanics, police officers, parents, etc...with empathy. There is nothing wrong with empathy.

Thank you for including examples of how Ginsburg and Alito's personal histories affect their work as a judge. None of us can completely separate who we are from the work we do. It just can't be the only influence on our work. I believe Ginsburg, Alito, Sotomayor and all the other supreme court justices can effectively decide cases brought to them using their own life experiences and the written law. This is why diversity on the court is a necessity.

Barbara   May 28th, 2009 4:27 pm ET

They tout their "Christian values," and they think "empathy" is a dirty
word. Having compassion for people, especially the disadvantaged,
the poor, the sick, the old, children. This is the crowd that cuts off
aid to the poor, the sick, the old, the disadvantaged – the very
opposite of what the bible teaches them. It is astounding that
anything to do with helping people, having compassion is attacked
by this crowd. That's what their savior was all about – it defined
what he was all about...

U.S. Common Sense   May 28th, 2009 4:27 pm ET

Empathy is not something Supreme Court judges should worry about. That is the job of the Representatives in Congress. Supreme Court justices are suppose to be neutral to all outside variables that do not pertain to the cases in front of them, and then their job is to rule based on the legality of the argument. Empathy is not a part of that equation.

Sandra,Atlanta   May 28th, 2009 4:27 pm ET

Finally someone who can explain the definition AND tie it back to a conservative judge. If any person says they do not view situations (legal or not) in the context of their own life experience, they are just flat out lying.

Lynn   May 28th, 2009 4:27 pm ET

@Sniffit,

I've noticed the same comment on several stories about the closing of Chrysler car dealerships (ignoring financial status to reward political affiliation/donations). Perhaps you should find a reputable, truthful, and indisputable News article covering this injustice and digg it. You'll get more exposure that way.

Marcia   May 28th, 2009 4:26 pm ET

Empathy is not a dirty word. Boy oh boy, some Republicans are so out of touch. Wake up people, this is 2009. You're not the only ones living in America. Immigrants are people too.

deb   May 28th, 2009 4:25 pm ET

Leave it to the GOP to say that empathy is a dirty word! And these are the same people who quote the bible left and right. What a bunch of hypocrites! Of course we would want ANY judge to have empathy! EVERY judge uses their common sense and, yes, empathy, when ruling on a case. God help us if they don't!

Dutch/Bad Newz, VA   May 28th, 2009 4:25 pm ET

@ Sniffit (The Real One)

I agree with you 100%

Sniffit   May 28th, 2009 4:21 pm ET

@ Sniffit, who said "Did Obama have empathy when he forced to close GOP-donor owned PROFITABLE Chrysler dealers while leaving DEM-donor owned UNPROFITABLE dealers open?

I think not.

Game. Set. Match."

Not unless you have PROOF. See, there are these things called FACTS and EVIDENCE and you're supposed to use them to inform your perception of REALITY when arguing that you've landed on the correct perception. Going around fabricating conspiracies and wrongdoing is only going to get you labeled as either slightly retarded or perhaps bipolar...certainly delusional.

Sniffit   May 28th, 2009 4:18 pm ET

@ fake Sniffit

That's because it was an oxymoron, moron.

Simmy   May 28th, 2009 4:17 pm ET

Republicans will make any word a 'dirty word' when it fits their agenda......There's a video clip showing FP Bush 41 introducing his 'nominee,' Clarence Thomas, as one having "empathy."

Republicans are salivating because there's an intelligent black man in the White House, who is whipping their butts and not playing their games......Chess vs. Checkers is like apples vs. onions, is like winning vs. losing......

Frank, Las Vegas   May 28th, 2009 4:16 pm ET

JM

The word "empathy" has been used before, by President George H. Bush when he nominated Clarence Thomas! How soon people forget. And yes, the conservatives were absolutely fine with "empathy" when talking about Justice Thomas.

shucks   May 28th, 2009 4:16 pm ET

I would much rather have empathy, experience, ethnicity as a deciding factor in the law than Religion anytime.

Darla (Edmonton, Canada)   May 28th, 2009 4:14 pm ET

If each of us lived our lives with empathy ... imagine how much kinder society and the world would be ... the postings on the CNN Ticker would definitely have a different tone!

JM   May 28th, 2009 4:08 pm ET

I'd be willing to bet you if the situation were reversed and it was a Republican President who said that about "empathy" then the Republicans and the Conservatives would be okay with it.

dominican mama 4 Obama   May 28th, 2009 4:07 pm ET

Who said 'empathy' is a dirty word? and why would you listen to the idiot that would?!

Dutch/Bad Newz, VA   May 28th, 2009 4:04 pm ET

Empathy is not a "dirty" word, but it's a word that needs to be applied when determing important things that have real effects on everyday people.

Comments have been closed for this article

subscribe RSS Icon
About The Ticker

The latest political news from CNN's Best Political Team, with campaign coverage, 24-7. Sign up for our twice daily Ticker emails. Got a news tip or feedback? For complete political coverage, bookmark CNNPolitics.com.

CNN=Politics Screensaver

CNN=Politics ScreensaverTap into the power of The Situation Room. Download this powerful new tool that keeps you posted on the latest political news from the campaign trail.
Download (4.1 MB, PC only)

twitter
@wolfblitzercnn: Trifecta -- NOT. My Redskins, Bills and Packers all lose this weekend. Very sad.
Updated: Mon, 21 Dec 2009 20:40:09 -0800
@HornickCNN: RT @andersoncooper: Interactive: The top 10 Health-Care-Reform Players http://bit.ly/6C3OlX
Updated: Mon, 21 Dec 2009 19:47:50 -0800
@HornickCNN: RT @cnn_oppmann: CNN.com: Mexico City approves same-sex marriage. http://bit.ly/5RyMnk #mexico
Updated: Mon, 21 Dec 2009 19:46:26 -0800
@HornickCNN: Rudy's reportedly not running for NY SEN or Gov ...
Updated: Mon, 21 Dec 2009 19:43:48 -0800
@wolfblitzercnn: Redskins-Giants always exciting. Both teams have a lot to prove. And Giants can still salvage playoffs. Skins just need a win.
Updated: Mon, 21 Dec 2009 17:19:36 -0800
Categories
Powered by WordPress.com VIP